Alan Millstein: Brady's chances of en banc hearing dramatically improved with latest amicus filings

[PatsFanSince74]

I had a conversation with my lawprof friend (who has been a CA7 clerk for Easterbrook) about timelines re: going to SCOTUS.

Good news and bad news.

On the good side, he said that the party asking SCOTUS to hear the case has 90 days to submit their certiorari petition and that "extensions are common and readily available". And then if the other side wants to submit a brief saying why SCOTUS shouldn't hear the case even more time will go by before SCOTUS even begins to decide to hear it or not. And then once SCOTUS finally has the petition and opposition in hand it takes an average of 6 weeks to decide whether or not to hear it.

So what that means is if en banc happens and Brady loses and if Brady can get a stay out of CA2 or SCOTUS pending SCOTUS's decision on whether or not to hear the case then we might get through the entire 2016-2017 season before SCOTUS even decides whether or not to hear the case (say en banc loss at beginning of September, then 90 days takes you to beginning of December, then throw in an extension and the NFL's reply time, and you're past the Superbowl).

On the bad side, he thinks that if en banc review is not granted (and perhaps even if it is) that NFLPA/Brady will have a tough time getting a stay from anyone pending SCOTUS decision on hearing the case or not because SCOTUS won't view missing the games as enough "irreparable harm" to the NFLPA/Brady because he doubts "they give a **** enough about football" and because they'll view Brady as being able to "repair" the harm by getting his game checks back if he ultimately wins (i.e. that SCOTUS would view the lost paychecks as the thing that matters, not the act of missing the games, and lost paychecks can always be restored after the fact, hence no "irreparable harm").

Unfortunately, the "bad news" makes logical sense. The Supreme Court wouldn't give a rat's patootie about the harm to the Patriots as a team, only whether any harm to Brady could be recouped at a later date.

 

[supafly]

I had a conversation with my lawprof friend (who has been a CA7 clerk for Easterbrook) about timelines re: going to SCOTUS.

Good news and bad news.

On the good side, he said that the party asking SCOTUS to hear the case has 90 days to submit their certiorari petition and that "extensions are common and readily available". And then if the other side wants to submit a brief saying why SCOTUS shouldn't hear the case even more time will go by before SCOTUS even begins to decide to hear it or not. And then once SCOTUS finally has the petition and opposition in hand it takes an average of 6 weeks to decide whether or not to hear it.

So what that means is if en banc happens and Brady loses and if Brady can get a stay out of CA2 or SCOTUS pending SCOTUS's decision on whether or not to hear the case then we might get through the entire 2016-2017 season before SCOTUS even decides whether or not to hear the case (say en banc loss at beginning of September, then 90 days takes you to beginning of December, then throw in an extension and the NFL's reply time, and you're past the Superbowl).

On the bad side, he thinks that if en banc review is not granted (and perhaps even if it is) that NFLPA/Brady will have a tough time getting a stay from anyone pending SCOTUS decision on hearing the case or not because SCOTUS won't view missing the games as enough "irreparable harm" to the NFLPA/Brady because he doubts "they give a **** enough about football" and because they'll view Brady as being able to "repair" the harm by getting his game checks back if he ultimately wins (i.e. that SCOTUS would view the lost paychecks as the thing that matters, not the act of missing the games, and lost paychecks can always be restored after the fact, hence no "irreparable harm").

So those who are claiming that a stay has been automatically granted already with the filing of the en banc process are WAY off, then?

Or has it (technically) been granted temporarily with the filing of the paperwork, but it doesn't really matter yet since there's a good chance that it won't be heard?

 

[VectorPrime]

Unfortunately, the "bad news" makes logical sense. The Supreme Court wouldn't give a rat's patootie about the harm to the Patriots as a team, only whether any harm to Brady could be recouped at a later date.

No offense to you but that's ********. If Brady misses the first 4 games he experiences harm that can not be recouped. Forget about reputation and sponsorships. How about that by him missing 4 games it becomes less likely that he is able to play in the playoffs and get potential playoff and Super Bowl game checks and all the financial bonuses that come directly with that?

 

[PatsFanSince74]

Could be, but might just be giving the impression of being open-minded. Nothing says they have to actually READ the briefs. Better than refusing to take the briefs though.

Pretty hard to refuse a brief from the Special Master of the September 11th Victim Compensation Fund.

 

[SHOWTIME15]

Unfortunately, the "bad news" makes logical sense. The Supreme Court wouldn't give a rat's patootie about the harm to the Patriots as a team, only whether any harm to Brady could be recouped at a later date.

This is what Brady should argue: Brady is the starting QB of the Patriots and would lose 4 games worth of $ for being suspended - the amount doesn't matter. In addition, he would lose the opportunity to help his team win a division title and get the best possible record heading into the playoffs. Moreover, he would lose the opportunity to win league MVP and his stat totals for the year would be less. And if suspended, he could potentially lose a lot of money in endorsement deals.

 

[QuantumMechanic]

So those who are claiming that a stay has been automatically granted already with the filing of the en banc process are WAY off, then?

Or has it (technically) been granted temporarily with the filing of the paperwork, but it doesn't really matter yet since there's a good chance that it won't be heard?

Not quite.

The CA2 panel decision was stayed the moment the NFLPA/Brady filed the petition for en banc review.

If the en banc review is denied, the stay expires 7 days after the denial. NFLPA/Brady would then have to convince CA2, and failing that, SCOTUS, to issue a stay pending SCOTUS's decision to hear the case.

If the en banc review is accepted, the panel decision is wiped off the books and the only "live" decision in place at that point would be Berman's. Then if the en banc court found completely against Brady (i.e. did not remand to Berman) their order reinstating the suspension would issue 7 days after the decision. And again, NFLPA/Brady would have to convince CA2, and failing that, SCOTUS, to issue a stay pending SCOTUS's decision to hear the case.

 

[Tony2046]

Pretty hard to refuse a brief from the Special Master of the September 11th Victim Compensation Fund.

Exactly. These briefs have been submitted by people who have big names, reputation and voices. They have to rehear this case. The consequences could be far reaching politically, socially and reputationally, IMO.

They will ask the NFL to respond and they will soon after grant an en banc hearing. It's just too big to pass up.


My possibly delusional opinion.

 

[DaBruinz]

That's a really good point, in my opinion. I didn't hear or see ANYONE calling for Kessler to be replaced prior to the March appeal.

There were quite a few people (not me) who were saying that Kessler would or should let Steffan Johnson or the other guy do the appeal..

 

[QuantumMechanic]

FWIW, @WallachLegal disagrees with my friend re: irreparable harm. I'll certainly be hoping Wallach is right if it comes to that!

 

[DaBruinz]

Thanks for remembering that. I recall multiple posts leading up to the Appeal Hearing in which I said that I assumed that Steffen Johnson (Winston & Strawn's lead Appellate Attorney) would argue the Appeal from the fact that his name was on the right hand side of the first page of the Brief and Kessler's on the left. I wrongly assumed that that meant that Johnson was in the first chair.

I also recall saying out here, after the Hearing and before we saw the full transcript of the disaster that unfolded when Kessler lost his cool, that I was stunned that Kessler had argued the Appeal.

In 20-20 hindsight, once they saw that Clement was in the first chair for they NFL, they should have brought Olson on right away, since Andrew Tulumello of Gibson Dunn had been party to every Brief filed by Brady and the NFLPA since the SDNY Appeal last spring.

My guess was and remains that one or more big egos trumped doing the right thing.

While your ego theory is the most plausible. There is another theory. That Johnson has a history with one of the 3 judges and through the discussions, they decided it would be best if he didn't take the lead. It wouldn't be the first time that there would be an issue between a judge and a lawyer that would make the judge partial against said lawyer.

The other thing here is that Johnson is still working with them. If it truly was an ego thing, he could have decided to drop out or assign someone else to the case. He didn't.

 

[Jackson 2]

There were quite a few people (not me) who were saying that Kessler would or should let Steffan Johnson or the other guy do the appeal..

Yes, I acknowledged nearly 14 hours ago in this thread that I missed that and congratulated those that did discuss it ( see post # 48.)

 

[supafly]

FWIW, @WallachLegal disagrees with my friend re: irreparable harm. I'll certainly be hoping Wallach is right if it comes to that!

Not quite.

The CA2 panel decision was stayed the moment the NFLPA/Brady filed the petition for en banc review.

If the en banc review is denied, the stay expires 7 days after the denial. NFLPA/Brady would then have to convince CA2, and failing that, SCOTUS, to issue a stay pending SCOTUS's decision to hear the case.

If the en banc review is accepted, the panel decision is wiped off the books and the only "live" decision in place at that point would be Berman's. Then if the en banc court found completely against Brady (i.e. did not remand to Berman) their order reinstating the suspension would issue 7 days after the decision. And again, NFLPA/Brady would have to convince CA2, and failing that, SCOTUS, to issue a stay pending SCOTUS's decision to hear the case.

Thanks for taking the time to not only respond, but to keep us all well informed....you freaking lunatic, you.

You, and the other attorneys are much appreciated in these trying times.

 

[supafly]

That's fricking awesome! I wanna buy that guy a beer or 12!

Yeah, someone put the word out: this dude is my hero. I looked at that pic twice today and cracked up both times. We can all talk a big game, but that took balls and I'm impressed.

 

[Jackson 2]

Yeah, someone put the word out: this dude is my hero. I looked at that pic twice today and cracked up both times. We can all talk a big game, but that took balls and I'm impressed.

My sister texted me yesterday to invite us to their annual July 4 cookout at their pool. I asked if I could invite the guy giving The Dope the Mass State Bird symbol. She said absolutely. She then suggested in his absence that we get a huge cutout of The Dope and have it poolside for our own similar photos. Now, that's a Patriotic idea.

 

[Fencer]

And their top dog was voted down. He wants another crack at this

That assumes they want to support their "top dog" over two of their other colleagues.

 

[Fencer]

Kessler, while not having a great day himself, got a bad judge draw. It's really that simple.

If by "bad judge draw", you mean judges who were strongly influenced by the "facts" of the case AND got those "facts" wrong, you have a good point.

 

[PatsFanSince74]

While your ego theory is the most plausible. There is another theory. That Johnson has a history with one of the 3 judges and through the discussions, they decided it would be best if he didn't take the lead. It wouldn't be the first time that there would be an issue between a judge and a lawyer that would make the judge partial against said lawyer.

The other thing here is that Johnson is still working with them. If it truly was an ego thing, he could have decided to drop out or assign someone else to the case. He didn't.

I never meant to suggest that it was Johnson's ego. Pretty sure it was Kessler's.

As for Johnson's history with one of the judges...that's somewhere between an unverifiable hypothesis and a wild ass guess, dontcha think?

 

[PatsFanSince74]

My sister texted me yesterday to invite us to their annual July 4 cookout at their pool. I asked if I could invite the guy giving The Dope the Mass State Bird symbol. She said absolutely. She then suggested in his absence that we get a huge cutout of The Dope and have it poolside for our own similar photos. Now, that's a Patriotic idea.

Somebody could make a lot of cash this summer standing in Faneuil Hall Marketplace or various malls in the Boston area and using peoples' cell phones to take pictures of them giving the bird to a life size cutout of Goodell...

 

[A Defiant Goose]

I know I'm a year late on this so don't beat me over the head too bad but I just realized...if the NFL had no idea weather would affect the PSI of footballs, why did they then find a few Colts balls to be underinflated and not investigate that? I mean we all know the answer to that but it was something I hadn't thought about til now

 

[Jackson 2]

Somebody could make a lot of cash this summer standing in Faneuil Hall Marketplace or various malls in the Boston area and using peoples' cell phones to take pictures of them giving the bird to a life size cutout of Goodell...

My sister, in addition to having a professional comedienne's wit, has always been incredibly creative.